Harper & Row, Publishers v. Nation Enterprises, 80 Civ. 0856 (RO).

• Decision Date: 16 February 1983
• Docket Number: No. 80 Civ. 0856 (RO).,80 Civ. 0856 (RO).
• Citation: 557 F. Supp. 1067
• Parties: HARPER & ROW, PUBLISHERS, INC. and the Reader's Digest Association, Inc., Plaintiffs, v. NATION ENTERPRISES and the Nation Associates, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

557 F. Supp. 1067

HARPER & ROW, PUBLISHERS, INC. and the Reader's Digest Association, Inc., Plaintiffs, v. NATION ENTERPRISES and the Nation Associates, Inc., Defendants.

No. 80 Civ. 0856 (RO).

United States District Court, S.D. New York.

February 16, 1983.

COPYRIGHT MATERIAL OMITTED

Edward A. Miller, New York City, for plaintiff Harper & Row, Publishers, Inc.

Cowan, Liebowitz & Latman, P.C., New York City, for plaintiff The Reader's Digest Ass'n, Inc.; Roger L. Zissu, Robert J. Bernstein, Jane Ginsburg, New York City, of counsel.

Cahill, Gordon & Reindel, Andrew L. Deutsch, American Civil Liberties Union, New York City, Leon Friedman, Hofstra University School of Law, Hempstead, N.Y., for defendants; Floyd Abrams, Devereux Chatillon, Carol E. Rinzler, New York City, of counsel.

OPINION AND ORDER

OWEN, District Judge.

Defendants Nation Enterprises and The Nation Associates, Inc. publish The Nation which is perhaps America's oldest continuously published weekly magazine. On a day in late March, 1979, an undisclosed "source" put The Nation's editor, Victor Navasky, into unauthorized possession of a draft of former President Gerald R. Ford's memoirs. This draft was the fruit of close to two years work by Ford and his assistant Trevor Armbrister, a senior editor of Readers Digest and himself an author of books.¹ Navasky knew the memoirs were to be published shortly in book form by plaintiffs Harper & Row Publishers, Inc. and The Readers Digest Association, Inc. with certain prepublication rights in Time magazine. However, believing that the draft contained "a real hot news story"² concerning Ford's pardon of former President Nixon, as well as lesser news, Navasky spent overnight or perhaps the next twenty-four hour period quoting and paraphrasing from a number of sections of the memoirs. Navasky added no comment of his own. He did not check the material. As he later testified, "I wasn't reporting on the truth or falsity of the account; I was reporting the fact that Ford reported this...." Part of Navasky's rush apparently was caused by the fact that he had to get the draft back to his "source" with some speed.

The Nation article, which appeared on the newsstands on April 3, 1979, is somewhat over two thousand words in length, and is set forth hereafter as Appendix A. The major part, as can be seen, details Ford's recital of the events of the pardon of former President Nixon beginning with the time General Alexander Haig, then President Nixon's White House chief of staff, first mentioned a pardon as an option in connection with a resignation, and ending long after the granting of the pardon when President Ford, out of compassion, went to visit the desperately ill ex-President Nixon.

The Nation article also repeats vignettes about Henry Kissinger, John Connally and David Kennerly, a White House photographer. It includes Ford's Presidential reminiscences of Nelson Rockefeller, Ronald Reagan, and Edward Bennett Williams and his recital of the circumstances surrounding his decision to run again for the Presidency. The Nation article closes by relating in some detail Ford's observations of Nixon's character.

The memoirs were shortly thereafter published under the title "A Time to Heal" and were, at the time of The Nation article, protected by copyright.³ Editor Navasky knew this. The article was therefore an infringement of that copyright, unless otherwise privileged.

The Nation endeavors to justify its use of the material under the "fair use" doctrine⁴ on the theory that the content of the Ford memoirs was "news"⁵ — indeed, that aspects of the Nixon pardon were "hot news."

The doctrine of fair use, which emerged through the common law is now codified in the Copyright Act of 1976, 17 U.S.C. § 107. The statute reads:

Notwithstanding the provisions of Section 106, 17 U.S.C. § 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose or character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Under these guidelines, the inquiry, as I perceive it, is whether The Nation's article was "news reporting", and if so, was a "fair use" of the materials taken.

Even were I to accept defendants' broadest statement of what was "news" in the Nation article, that news would be no more extensive than the following:

MR. NAVASKY: The news, in my judgment, was that President Ford had had a conversation with Alexander Haig that was possibly an impropriety at the highest level of our government because it suggested there was possibly an obstruction of justice⁶ in the transaction and in the story, and what was particularly newsworthy, having said that, was that in the book there were documents that Ford quoted from that, as far as I was aware of at the time — I have since discovered that they are in the Congressional Record — were being published for the first time that confirmed his account.

* * * * * *

In addition, the thing that was so striking to me was the written statement that Ford read to Alexander Haig after his conversations with his aides, saying that he has no intention of recommending what the President should do about resigning or not resigning after they had had a conversation the previous day on that matter. Navasky deposition at 37-9.

At no time did Navasky believe that the rest of the memoirs contained "hot news".⁷ Moreover, he was aware that once the book was published there would be no news value in any of the material.⁸

More importantly, it is now conceded even by defendants that the "hot news" revealed in the article was not the revelation that Navasky believed it was when he testified on his deposition. What Navasky on that March day in 1979 thought was "hot news" about the pardon in the Ford memoirs had in fact been the subject of detailed testimony by President Ford in an unusual personal appearance before a Congressional Committee in 1974 which, needless to say, had been blazoned by the press.⁹ Given the foregoing, I conclude that the "revelations" of the Ford memoirs were not such news, "hot" or otherwise, as to permit the use of author Ford's copyrighted material.

Assessing the "fair use" factors, I conclude here, too, that none of them provide The Nation with the absolution it seeks. First, the article was published for profit. Second, the infringed work was soon-to-be published. Third, The Nation took what was essentially the heart of the book,¹⁰ and fourth, the effect of The Nation's extensive use of the Nixon pardon material caused the Time agreement to be aborted and thus diminished the value of the copyright.¹¹

As was stated so simply and effectively by Justice Story in Folsom v. Marsh, 9 F.Cas. 342 (C.C.D.Mass.1841) (No. 4901), in a case involving one Jared Sparks who published in book form certain official and other papers of George Washington:

No one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.

9 F.Cas. at 344-45.

Upon the failure of their fair use defense, defendants are left with one final contention. The Nation asserts that three categories of materials in the Ford memoirs are not copyrightable: (1) the recitals of historical facts, (2) the texts of government memoranda prepared by individuals other than Ford, and (3) the quoted conversations of persons other than Ford. The Nation contends now that given the non-copyrightability of these materials, its taking of copyrightable material was of such modest compass as to be excusable under the law.

Without question, defendants are correct in their assertion that the historical facts and the memoranda prepared by others are not per se copyrightable by President Ford. However, these facts and memoranda were of interest to The Nation only to the extent that The Nation could set forth Ford's views about them or the manner in which Ford said his life had been affected by them. The Nation certainly had no interest in presenting these historical facts and memoranda in isolation. Rather, it is the totality of these facts and memoranda collected together with Ford's reflections that made them of value to The Nation. Correspondingly, it is this same totality that is protected by the copyright laws.

This principle governs the portions of Ford's memoirs reciting the statements of individuals other than Ford as well. I decline to enter the thicket of deciding which statements were exact quotations — and therefore not protected by copyright¹² — and which were merely reconstructions of statements pieced together by Ford — and therefore copyrightable.¹³ I suspect that most were to some degree reconstructions. Suffice it to say that, simply viewed, I regard the historical facts, memoranda, and statements as integral and necessary components of the context of Ford's revelations as to his state of mind while involved in governmental affairs of the highest consequence.

Finally, plaintiffs request an award of their attorney's fees incurred in prosecuting this action. While...